KAILUA-KONA — Key elements in a “landmark” bail reform bill have already been in practice for years in Hawaii Island courts.
On Saturday, 3rd Circuit Court Chief Judge Greg Nakamura said if the proposed measure passes its final vote, the 3rd Circuit would follow the statute and make the appropriate adjustment.
“We already substantially comply with the proposals on our island,” Nakamura said. “Adjustments might be following statutory requirements. The statute might provide a different legal orientation.”
On Friday, House and Senate conferees passed a measure one legislator during conference committee described as “landmark bail reform.” The purpose of House Bill 1552 is to address overcrowding in the state’s jails. The bill now moves to the full House and Senate for a final vote.
Bill sponsor Rep. Gregg Takayama, Chair of the House Public Safety, Veterans and Military Affairs Committee, said the reform is long overdue.
“This measure will help create safer, smarter and more transparent systems of corrections and criminal justice in Hawaii,” Takayama stated.
Hawaii County Prosecutor Mitch Roth said there were things the prosecutor’s office liked about the bill, but “the devil is in the details with this one.”
Without reading the final draft, Roth couldn’t say whether he supported the measure or not.
A lot of the problems within the judicial system are centered on Oahu, Hawaii County’s head prosecutor said. State decisions, he added, are often made based on circumstances in Honolulu.
“We should be looking at our problems as the state of Hawaii,” Roth said.
Roth said some things in the bill won’t affect the Big Island because the 3rd Circuit is already doing what’s proposed.
“It may affect us negatively because they’re trying to solve another jurisdiction’s problems,” he said.
House Bill 1552 establishes many elements that reform how the state’s system handles people arrested and incarcerated. In a press release put out by Takayama’s office Friday, he highlights three elements the bill will address.
The first is establishing a Hawaii Correctional System Oversight Commission. With the bill, the commission would be responsible for helping transition to a more effective and therapeutic correctional system, investigating complaints and examining best practices in other systems.
Roth said two already established commissions do something similar to the proposed Oversight Commission. While those commissions are operated by volunteers, Roth said, the bill would put hundreds of thousands of dollars into the Oversight Commission.
“It sounds like it’s a really good idea, but we need to be communicating about what’s already out there,” he said.
The bill also looks at bail in an effort to reduce overcrowding in facilities. Some of the changes include expediting bail hearings within three days of an individual being brought into jail, allowing for posting of bail seven days a week and reviewing pretrial detainees at least every three months to reassess if the individual should remain in custody or circumstances allow for a pretrial release.
Nakamura said the 3rd Circuit already has practices in place for timely bail hearings.
“On our island, the Intake Service Center prepares the bail studies,” he said. “On our island, their practice is to deliver bail reports prior to arraignment or first appearance.”
Nakamura added it’s also his understanding detainees have the ability to post bail 24-7 per an agreement between police and Hawaii Community Correctional Center.
When bail is allowed, the bill states, it is required to be set under the “least restrictive conditions required to ensure a defendant’s appearance and to protect the public.”
“Bail shall be set in a reasonable amount, with consideration of offense alleged, possible punishment upon conviction, and the defendant’s financial circumstances,” Takayama’s release indicates of the measure.
Nakamura said the “least restrictive” element was not clearly written out in the law in the past adding that will be up to an individual judge’s discretion.
While Hawaii Island courts already utilize many of these proposed elements, there is still overcrowding in HCCC. According to the Public Safety Department, Hawaii County’s jail is over capacity by double. As of March 31, there 184 pretrial detainees.
With some suggestions to language in the bill, PSD Director Nolan Espinda said the department “welcomes these comprehensive changes to the criminal pretrial procedures, which we believe will assist in reducing the offender populations within the community correctional centers.”
Although it’s refreshing to see the state is addressing bail reform, defense attorney Jason Kwiat, said the importance of the issue shouldn’t be minimized by the notion of detention facility overcrowding.
“It’s a matter of civil rights, period,” he said.
In recent decades, Kwiat said, application of bail has too frequently become a form of pretrial punishment—leverage over an accused to secure a guilty plea rather than to ensure reappearance of a defendant or to address sufficiently demonstrated safety concerns for the community.
“Nowhere is this more apparent than for petty offenses,” he said. “In these cases, if an accused wishes to assert his or her right to a trial, but cannot post bail, they often remain in custody beyond the amount of time they face upon a finding of guilt. It’s fundamentally wrong.”
Also, Kwiat added, unless and until more pretrial monitoring positions are created and sufficiently funded, any meaningful progress will be impossible.
Hawaii Supreme Court Chief Justice Mark E. Recktenwald supports HB 1552.
“This bill makes significant reforms to our criminal justice system,” Recktenwald said. “Once implemented, judges will have quicker access to more robust information concerning the release from custody of defendants who are awaiting trial, thus allowing for more informed decision making. This bill will enhance public safety while ensuring that defendants will not be held in jail simply because they can’t afford to post bail.”
On behalf of the Hawaii State Judiciary, Recktenwald expressed his deepest appreciation to Reps. Gregg Takayama, Chris Lee, and Sylvia Luke; and Sens. Clarence Nishihara, Karl Rhoads, and Donovan Dela Cruz for their leadership and diligence in creating this “significant piece of legislation.”